FFI Under Fire

It was often predicted, not least in these columns, that Fees For Intervention (FFI) would be controversial and might set HSE Inspectors against the very health and safety consultants and in-house specialists with whom they should be working co-operatively.

Well, judging by a lively and controversial forum correspondence within HSE’s own auspices (its website), that is in too many cases what is happening.

We do not even need to believe the pseudonymous correspondents – on 9 January 2014, Martin Temple published his independent triennial review of HSE, under the auspices of the Department for Work & Pensions. He found that the HSE was generally fit for purpose and that a non-departmental body like this was the appropriate delivery method for health and safety regulation. However, he had received such a depth of bad feeling about FFI in its first 12 months of operation that he concluded –

See https://www.gov.uk/government/publications/triennial-review-report-health-and-safety-executive-2014 for the full Review.

Why did he think this? Because:

1. FFI is a penalty/fine system that lacks any of the usual safeguards for such a regulatory scheme
2. FFI’s creation is due to HSE having to fill a financial hole created by their reduced government budget, and users feel that FFI is driven by revenue generation

Mr Temple’s recommendation is that stakeholder views must be widely canvassed and that HSE must assess whether the system has actually led to any improvement in health and safety. If not, then other ways of raising revenue need to be found.

He also points to an issue that we have raised in previous articles – namely the lack of an independent person sitting on the FFI appeal process, stage 1. He wants to see that remedied urgently.

What do the building safety professionals say?

Issues highlighted by health and safety consultants and in-company managers include a school whose asbestos insulation was perfectly covered up and decoration was spotless; yet they were fined for lack of an asbestos survey.
Others cited reports that the HSE is not raising as much money as they had hoped from FFI, and they suggested that Inspectors were therefore under pressure to hand out more fines.

Construction safety will always be an issue – its record will never be as low as in sedentary occupations – but to put things into perspective, one person has highlighted how a firefighter is praised for rescuing a victim from a blazing building using a ladder, when a sub-contractor could lose his job for using a small unlicensed ladder or steps.

Clients and building contractors are not willing to challenge smaller fines due to the legal cost and the lack of independent assessors. But if they accept an FFI ruling, do they become people of bad character, marked men and women?

The lack of due legal process, and how it is seen to fly in the face of the principle ‘innocent until proven guilty’, has stirred up a lot of bad feeling. It is described as being law-making based on interpretation and not fact. A traffic fine is based on measurable speed data. An FFI is handed out by an Inspector based upon his or her sole judgement. It has been suggested that the matter may be worth taking to a senior appeal court, even to Europe.

Responsible safety practitioners do not argue that the guilty should not be penalised – and some would like to see harsher fines in court, with the fees going towards HSE’s budget.

Britain actually has one of the best overall health and safety records, including its construction safety figures. It is an open question whether FFI is the right way to improve it further, or whether it drives a wedge between the regulators and the regulated who ideally need to have a productive working relationship.

As a piece of recent legislation it will not be easy to throw out FFI wholesale: but by letting Mr Temple’s report be issued without complaint, maybe HSE is acknowledging that it needs to be reformed.